Lord Fowler: I, too, support this important amendment. We are very keen on setting up regulatory bodies, giving them powers and laying down principles by which they should act. However, when it comes to it, I suspect that it is more important that successive governments and successive Ministers should act according to the kind of principles that are set out in Clause 3; that is, principles such as the maintenance of a plurality of providers of different television and radio services. These are issues which are set out there

6 May 2003 : Column 1046

and which I think should guide successive governments and successive government Ministers. As the noble Lord, Lord Crickhowell, said, this clause spells out the position as far as Ministers are concerned.

I am bound to say that I start from a suspicion of governments and government Ministers becoming involved with the media at all. I emphasise and underline that irrespective of political party. It is not remotely a party political point. The overwhelming interest of any government is that they should be seen in the best possible light on all issues, which can lead to all kinds of actions. When I served in another place as shadow Home Secretary a few years ago, I remember the Home Secretary placing an injunction on the national press because of a report that was embarrassing to him.

As for the regulatory issues of this Bill, I underline a point made earlier. I believe that we all have suspicions about decisions on ownership made by governments. I certainly hope that the Secretary of State does not believe that there is any kind of consensus on the ownership provisions of the Bill, with which we shall deal later. We all deeply suspect that some previous decisions have been made on the grounds that it might be politically advantageous to do soindeed, this also applies to decisions that will be madebecause it is useful to have an owner on your side. On occasions, we suspect that Ministers can make decisions on reference to competition authorities which are very much based on their own beliefs, and which might reflect their own prejudices.

Not all of those issues can be tackled by one new clause inserted in the Bill. However, the proposed clause lays down guidelines under which Ministers should act. I assume that the argument against such a provision is that government Ministers are different from regulatory bodies in that they are answerable to Parliament; and they certainly are. But the process and progress of this Bill show how inadequate such a check can be today. Over 100 of the clauses in this Bill were not debated in another place. That is utterly disgraceful.

The noble Lord, Lord Puttnam, who accomplished such a fine job on the scrutiny of the Bill, should not be apologetic about the 70 amendments that he has put forward at this stage. When the Bill was debated in another place, we can all agree that no adequate check was placed on Ministers responsible for this policy. It is very difficult to argue against that position.

Although the proposed new clause is not a guarantee that Ministers will act objectively, sensibly, and with fairness, it would at least set down the principles that they should follow. The latter are important principles. I believe that most noble Lords in this place, and most of the people outside, would agree with them. I see every advantage in such a provision being included in the Bill in the way proposed by my noble friend.

6 May 2003 : Column 1047

9.15 p.m.

Viscount Astor: I have some brief comments to make about my noble friend's amendment. Whatever party is in opposition, it seems to me that it is always moving amendments to Bills stating that the Government and the Secretary of State should have less power. It is then the duty of Ministers of the party in power to defend that position, because they are constantly being advised by their Secretaries of State in another place who, having finally reached their exalted positions, want to keep the maximum amount of power possible.

I make the following comments with due deference to my two noble friends who spoke before me, both of whom have held exalted positions in another place. Nevertheless, I am sure that they will understand. The issue has been debated in this Chamber on many occasions during the course of legislative scrutiny. The one lesson that we learned from the two previous broadcasting Bills is that such legislation quickly becomes out of date. Therefore, it is important for the Secretary of State to have such power in certain circumstances, but also to have a wider view of such matters than we can possibly perceive this evening. At the same time, the Secretary of State must be answerable to Parliament and, indeed, he or she should not interfere with the running and the operation of Ofcom. If we are creating such an entity then it is important to leave it to carry out its duties without government interference, whatever shade of government that may be.

The Minister will have to demonstrate why the amendment spoken to by my noble friend should not apply because, in principle, we all believe that governments should be made more accountable, not less so. To that end, I agree that the noble Lord, Lord Puttnam, should make no excuses for the number of amendments he has tabled, in particular given that, despite the best of intentions, the system operated in another place does not allow it properly to scrutinise Bills. This is a revising Chamber and we would be derelict in our duty if we did not carry out that role.

Lord McNally: On the point of the number of amendments which have flowed from the scrutiny committee, I hope that we have been able to strengthen the position of future pre-legislative committees in getting from the Government the proper response that the work deserves.

I wish to make a relatively brief point that flows from the remarks made by the noble Viscount, Lord Astor. There is much in the Bill that attempts to deal with the problem often encountered by broadcasting and communications Bills; namely, that very quickly they become out of date. As the joint committee noted, the Bill leaves a wide range of discretionary powers to Ministers, along with certain regulatory functions. Therefore I seek simply to put back to the noble Lord, Lord McIntosh, the point he made about an hour ago. He pointed out very pertinently that we have spent one-and-a-half days debating in Committee the general powers of Ofcom. Having spent so long considering those general

6 May 2003 : Column 1048

powers, it is a little rum to be told, "Oh, by the way, it does not apply to Ministers". Future historians would boggle at Parliament if such gaps were left so that Ministers could later ride a coach and horses through them. Furthermore, the noble Lord, Lord Fowler, was right to point out that many of those gaps could be used by Ministers to make highly sensitive political decisions.

The case for Ministers to be subject to the same responsibilities and guidelines that have been put with such care on the regulator is very strong indeed.

Baroness Buscombe: I rise simply to support the amendments. I am not sure whether the noble Lord, Lord Puttnam, was in his place earlier when I referred to what the Secretary of State said in public last week. He stated that we had already reached a consensus on the Bill. That is why I am particularly pleased that the noble Lord has confirmed that he makes no apologyand nor should hefor bringing forward these amendments.

Lord McIntosh of Haringey: I hope that the noble Lord, Lord Crickhowell, will forgive me if I start by responding to my noble friend Lord Puttnam. I shall do so because he sought to make certain general points about the work of his committee and the nature of the Government's response. His first point was that the Government should not be resentful of the fact that something like 70 amendments have emanated from what I refer to as the "gang of four"I am sure my noble friend will forgive me for using that expression, because it is how I have thought of the committee all along.

We are not in the least resentful. We think that it is entirely proper for the pre-legislative scrutiny committee to recognise, first, that some 120 of the roughly 140 recommendations were accepted by the Government. My noble friend has acknowledged that and we are grateful to him for doing so. Conversely, however, it is also entirely proper for the committee to seek to protect and advocate the 20 or so recommendations which were not accepted by the Government. We harbour no trace of resentment about that and we do not in the least resent debating those points in public.

However, my noble friend went on to say that in some cases the Government's response was, shall we say, summary and that we would have saved time if we had argued the case in more detail. On that I do think he is wrong. When we consider the Government's response, it is a response not only to the recommendations, but also to the evidence which was presented to the committee. If he looks at page 405 of the evidence presented to the joint scrutiny committee by the Government he will see that the issues raised by the amendment are covered in great detail. Yes, the response to recommendation 42, to which the noble Lord, Lord Crickhowell, referred, is fairly brief. But if we look at the detail in the evidence, we said that a number of powers were conferred on the Secretary of State and we explained the rationale for them.

We have tried to define the powers and duties of Ofcomparticularly the general duties, which we have been debating for a day and a halfbecause it is

6 May 2003 : Column 1049

important that we should get them right and that Ofcom should have powers and duties which are definable and workable. But that does not apply to the Secretary of State, who has to represent the public interest for a period of time.

We suggested six broad categories where the Secretary of State should continue to have powers which were not restricted by the Bill. Incidentally, the amendment would restrict the Secretary of the State not only to the Bill but to Clause 3 of the Bill, which is not concerned with the whole range of responsibilities of either Ofcom or the Secretary of State.

The six broad categories are: future-proofing powers, which have been referred to, that permit changes to the Bill once it has been enacted to ensure that it remains effective in the light of rapidly changing market dynamicsa point made by the noble Lord, Lord McNally; powers to ensure public policy objectives, such as the provision of services essential to full social and economic inclusionyes, of course it is a proper objective of Ofcom, but Ofcom cannot achieve it by itself and it needs to involve public policy; powers to ensure compliance with international obligations, a point recognised by the noble Lord, Lord Crickhowell, which he did not contest; powers to ensure the effective operation of concurrency and competition law and which concern the interaction between the Bill and the Competition Act 1998which again has not been questioned as being a legitimate role of the Secretary of State; transitional powerswhich again have not been contested; and the consequential powers needed to ensure that other areas of the law affected by the current regulatory regime are amended to reflect the proposed regime. Those are all matters which we need to get right to ensure that Ofcom is properly established.

None of those powers seem controversial. They are not difficult to understand. It is clear that the Secretary of State will have to do this before, during and after the existence of Ofcom. No, I am sorry; Ofcom must last for ever, must it not? Nevertheless, these are proper things which, in the exercise of public policy, any Secretary of State must do. The fact that Parliament has created an Office of Communications and given it defined and workable powers ought not to detract from the responsibilities of any Secretary of State.

It is suggested by the noble Lord, Lord Crickhowell, that somehow the responsibilities of the Secretary of State are not constrained. They are constrained all the time. They are constrained by obligations arising under European Community law, under domestic law and under international treaties to which the UK is a party. All this is set out in the evidence that we gave to the committee of the noble Lord, Lord Puttnam. So it is not new to any noble Lord to whom I am speaking today.

Before using the power, the Secretary of State would need to consider whether such action was proportionate and compliant with the EC communications directives. But the exercise of the powers is not subject to the general duties set out in Clause 3(1) and 3(2) of the Communications Bill. The reason for that is that the

6 May 2003 : Column 1050

Secretary of State can be expected to exercise wider public policy discretion than that of Ofcom when using its powers under the Communications Bill. Clause 3(1) imposes obligations on Ofcom, among other things, to further consumer interest and promote competitionalthough the wording has of course changed; we do not say "promote competition" any moreand to encourage efficient use of the radio spectrum. The Secretary of State will not be limited to the consideration of these factors when exercising her powersand nor should she be.

The Communications Bill does not impose a duty on the Secretary of State to take these factors into account, since Ofcom and the Secretary of State do not perform or share regulatory functions. This is the fundamental point which has to be recognised; it was made clear in the Government's evidence. The Secretary of State is constrained by the specific criteria listed in the Communications Bill, by the negative resolution procedure, by the affirmative resolution procedure and, of course, by the general requirements of administrative law.

The noble Lord, Lord Crickhowell, recognises the division of power regarding the Secretary of State, who is accountable to Parliament. However, both former Secretaries of Statethe noble Lords, Lord Fowler and Lord Crickhowellare very cynical about the exercise of the functions they once exercised so joyfully.